State Of Washington, V Scott D. Stargel

FILED
COURT OF APPEALS
DIVISION II
2OJ51 R 17 AM 8: L2
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45721 -1 - II
Respondent,
v.
SCOTT DOUGLAS STARGEL, UNPUBLISHED OPINION
Appellant.
WoRSwICK, J. — A jury returned verdicts finding Scott Stargel guilty of second degree
theft and second degree vehicle prowling. Stargel appeals his convictions, asserting that ( 1) the
trial court erred by denying his motion to suppress evidence that the victim had identified him in
a photographic montage, which montage Stargel contends was impermissibly suggestive; and ( 2)
the State failed to present sufficient evidence of the value of stolen items in which to support his
second degree theft conviction. Because the photographic montage used to identify Stargel was
not impermissibly suggestive, and because the State presented sufficient evidence from which
the jury could have reasonably concluded that the items Stargel stole were valued in excess of
750, we affirm Stargel' s convictions.
No. 45721 - 1 - II
FACTS
On April 15, 2011, Dalton Hembroff drove to a Puyallup Subway restaurant to purchase
lunch. When Hembroff parked and exited his truck, he made eye contact with a man who
appeared suspicious to Hembroff. The man was standing in front of a blue car that was parked
next to Hembroff s truck. Hembroff locked his truck and entered the restaurant. When
Hembroff exited the restaurant a few minutes later, he saw that some items had been taken from
his truck. Hembroff saw that the blue car previously parked next to him was " briskly" leaving
the parking lot, and he decided to follow the car. Report of Proceedings ( RP) ( Nov. 6, 2013) at
30. Hembroff called 911 while continuing to follow the blue car; he stopped following the car
after the 911 operator instructed him to do so.
Shortly thereafter, Hembroff met with Puyallup Police Officer Greg Reiber at the
Subway parking lot and gave Reiber a description of the theft suspect. Hembroff described the
suspect as a " dirty or scruffy" six foot tall white male with tanned skin who was approximately
30 years old, weighed 180 pounds, and had short brown hair. The following week, Hembroff
obtained security video footage that showed the theft of items from his truck, and he gave the
footage to the police.
On January 9, 2012, Puyallup Police Detective Michael Lusk contacted Hembroff to see
if he could identify the theft suspect from a photographic montage. Lusk presented Hembroff
with a photographic montage containing Stargel' s photograph and the photographs of five other
males. Hembroff identified Stargel as the theft suspect.
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On February 28, 2013, the State charged Stargel with second degree theft and second
degree vehicle prowling. Before trial, Stargel moved to suppress evidence that Hembroff had
identified him in a photographic montage, which motion the trial court denied.
Hembroff, Reiber, and Lusk were the only witnesses at trial, and each testified
consistently with the facts stated above. Additionally, Hembroff testified that the items stolen
from his truck included anew umpire jacket valued at $ 100, two textbooks that cost $ 80 to $ 100
each, and a laptop computer, which computer Hembroff stated he had purchased for $900 less
than a year before it was stolen. After the State rested its case, Stargel moved to dismiss his
second degree theft charge, asserting that the State failed to prove with sufficient evidence that
the combined value of the stolen items exceeded $ 750. The trial court denied Stargel' s motion to
dismiss. The jury returned verdicts finding Stargel guilty of second degree theft and second
degree vehicle prowling. Before sentencing, Stargel filed a CrR 7.4 motion for arrest of
judgment, again asserting that the State failed to present sufficient evidence that the items he
stole were valued in excess of $750, which motion the trial court denied. Stargel appeals his
convictions.
ANALYSIS
I. SUPPRESSION OF IDENTIFICATION EVIDENCE
Stargel first contends that the trial court erred by failing to suppress evidence that the victim
had identified him in a photographic montage. We disagree.
We review a trial court' s decision to admit evidence of a victim' s out -of -court
identification of the defendant for an abuse of discretion. State v. Kinard, 109 Wash. App. 428,
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No. 45721 -1 - II
432, 36 P.3d 573 ( 2001). We apply a two -part test to determine whether a trial court abused its
discretion by admitting evidence that the defendant was identified in a photographic montage.
First, the defendant bears the burden of demonstrating that the identification procedure was
impermissibly suggestive. State v. Linares, 98 Wn. App. 397, 401, 989 P.2d 591 ( 1999) ( citing
State v. Vaughn, 101 Wash. 2d 604, 682 P.2d 878 ( 1984)). An out -of c
- ourt photographic
identification procedure is impermissibly suggestive if the procedure directs undue attention to a
particular photograph. Kinard, 109 Wn. App. at 432 -33. " Minor differences in the photos" are
insufficient to demonstrate that the identification procedure was impermissibly suggestive. State
v. Eacret, 94 Wn. App. 282, 285, 971 P.2d 109 ( 1999). Second, if the defendant demonstrates
that the identification procedure was impermissibly suggestive, we must then determine whether
such suggestiveness created a substantial likelihood of irreparable misidentification considering
the the circumstances. Linares, 98 Wn. App. at 401. In making this determination, we
totality of
consider:
criminal of the crime; ( 2)
1) the opportunity of the witness to view the at the time
the witness' s degree of attention; ( 3) the accuracy of the witness' s prior description
of the criminal; ( 4) the level of certainty demonstrated at the confrontation; and ( 5)
the time between the crime and the confrontation.
Linares, 98 Wn. App. at 401. If Stargel fails to show that the photographic identification
procedure used here was impermissibly suggestive, our inquiry ends, and we need not analyze
the second part of the test. Eacret, 94 Wash. App. at 285 ( citing Vaughn, 101 Wash. 2d at 610 -11).
Here, the photographic montage at issue pictured six white males with similar features. °
Each of the men pictured in the photographic montage appeared to be approximately 30 years of
age with short to medium brown or black hair. Stargel and all but one of the other men pictured
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No. 45721 -1 - II
had short facial hair. Additionally, each of the men were pictured in a booking photograph with
a similar gray background; three of the men were wearing what appears to be an orange jail
uniform and the remaining three, including Stargel, were wearing what appears to be a gray jail
uniform. Stargel asserts that his photograph differed from the remaining photographs in three
ways: ( 1) his photograph appears to have been shot from closer up such that his head occupies a
larger portion of the photograph than the other men; ( 2) his photograph has a lighter background;
and ( 3), he is the only man pictured with a visible tattoo on his neck. We hold that these minor
differences are insufficient to demonstrate that the photographic montage identification
procedure used here was impermissibly suggestive. Eacret, 94 Wash. App. at 285. In reaching
this holding, we are guided by prior cases addressing this issue.
For example, in State v. Weddel, 29 Wn. App. 461, 474 -75, 629 P.2d 912 ( 1981.), we held
that a photographic montage was not impermissibly suggestive where ( 1) the subjects were
photographed against different backgrounds, with only the defendant photographed against an
off w
- hite background with an electrical panel showing; and ( 2) the defendant' s photograph was a
quarter -inch wider than the other subjects' photographs. Although we stated that the difference
in the background of the defendant' s photograph was " troubling," and that the photographic
montage was " not completely free of possible suggestiveness," we nonetheless held that the
montage was not " so impermissibly suggestive as to deny defendant due process of law." 29
Wn. App. at 475 -76. In so holding, we reasoned that the identifying witness' s identification of
the defendant was not influenced by the slight differences in the photographs. 29 Wash. App. at
475.
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No. 45721 - 1 - II
Similarly, in State v. Hanson, 46 Wn. App. 656, 666 -67, 731 P.2d 1140 ( 1987), Division
One of this court held that a photographic montage was not impermissibly suggestive where ( 1)
the defendant' was Polaroid film, and ( 2) " the
one of only two subjects photographed with
subjects var[ ied] in age and appearance more than is desirable." In holding that the photographic
montage identification procedure was not impermissibly suggestive, the Hanson court reasoned
that the variations in the photographs " did not suggest that [the defendant] was a more likely
suspect than the others displayed." 46 Wash. App. at 666 -67. The Hanson court also relied on the
identifying witness' s testimony " that no one drew her attention to any of the photos and that she
felt free not to pick any of the subjects displayed in the montage." 46 Wash. App. at 667.
Finally, in State v. Vickers, 148 Wash. 2d 91, 118, 59 P.3d 58 ( 2002), our Supreme Court
held that a photographic montage was not impermissibly suggestive where ( 1) the defendant was
depicted in a Department of Licensing photograph whereas the remaining five subjects were
depicted in booking photographs, ( 2) the background of the defendant' s photograph was lighter
than the other photographs, and ( 3) the defendant was the only subject in the montage who was
not wearing coveralls. Our Supreme Court concluded that the differences between the
defendant' s photograph and the remaining subjects' photographs was too slight to be
impermissibly suggestive, reasoning that each of the photographs appeared to be the same size
and that each subject was a male of approximately the same age with dark scalp and facial hair.
Vickers, 148 Wash. 2d at 119.
No. 45721 - 1 - II
Here, the differences between Stargel' s photograph and the remaining subjects'
photographs is less pronounced than those differences identified and determined to be
permissible in Weddel, Hanson, and Vickers. Although Stargel' s photograph contained a
background that was lighter than the remaining subjects' photographs, each of the photographs
had the same gray background color, and the difference in the background lightness of Stargel' s
photograph when compared to two of the other subjects' photographs is so minor as to be nearly
indiscernible. The difference in Stargel' s head size when compared to the other photographs is
also slight and did not suggest that he " was a more likely suspect than the others displayed."
Hanson, 46 Wash. App. at 667. Finally, the fact that Stargel' s photograph was the only one in
which the subject had a neck tattoo did not render the photographic montage impermissibly
suggestive because Hembroff testified that he did not see whether the theft suspect had a neck
tattoo when he first saw him, and because Hembroff testified that the presence of the neck tattoo
in Stargel' s photograph did not play a role in his identifying Stargel as the theft suspect. Because
the photographic montage used here to identify Stargel was not impermissibly suggestive, the
trial court did not abuse its discretion by admitting the out -of -court identification evidence at
trial.
II. SUFFICIENCY OF THE EVIDENCE
Next, Stargel contends that the State failed to present sufficient evidence that the items he
stole exceeded $ 750 in value, an essential element of second degree theft. Again we disagree.
Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the
evidence in the light most favorable to the State, could find the elements of the charged crime
No. 45721 - 1 - II
beyond a reasonable doubt. State v. Longshore, 141 Wash. 2d 414, 420 -21, 5 P.3d 1256 ( 2000).
We interpret all reasonable inferences in the State' s favor. State v. Hosier, 157 Wash. 2d 1, 8, 133
P.3d 936 ( 2006). Direct and circumstantial evidence carry the same weight. State v. Varga, 151
Wash. 2d 179, 201, 86 P.3d 139 ( 2004). Credibility determinations are for the trier of fact and are
not subject to review. State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 ( 1990).
To convict Stargel of second degree theft as charged here, the State had to prove beyond
a reasonable doubt that he ( 1) wrongfully obtained or exerted control over the property of
another (2) exceeding $ 750 in value but not more than $5, 000 in value ( 3) with intent to deprive
the person of his or her property. RCW 9A. 56. 020( 1)( a); former RCW 9A. 56. 040( 1)( a) ( 2009).
Stargel in support of the second element —that the
challenges only the sufficiency of evidence
value of the stolen property exceeded $ 750 in value.
Former RCW 9A.56. 010( 18)( a) ( 2006) defined "[ v] alue" as " the market value of the
or services at the time and in the approximate area of the criminal act." " Market value"
property
is the price that a well- informed buyer would pay to a well -informed seller. State v. Kleist, 126
Wash. 2d 432, 435, 895 P.2d 398 ( 1995). It is well established in this state that an owner of
property may testify to the property' s value "' whether he [ or she] is generally familiar with such
values or not. "' State v. Hammond, 6 Wn. App. 459, 461, 493 P.2d 1249 ( 1972) ( quoting 3 JOHN
HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 716, at 56 ( James H. Chadbourn rev.
ed. 1970)). Additionally, evidence of the retail price of the stolen property, alone, may be
sufficient to establish the value of the property. State v. Ehrhardt, 167 Wash. App. 934, 944, 276
P.3d 332 ( 2012). And, "[ t] he price paid for an item of property, if not too remote in time, is
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No. 45721 -1 - II
proper evidence of value." State v. Melrose, 2 Wn. App. 824, 831, 470 P.2d 552 ( 1970). The
State need not present direct evidence of the value of stolen property, rather, " the jury may draw
reasonable inferences from the evidence, including changes in the condition of the property that
affect its value." Ehrhardt, 167 Wash. App. at 944. The jury may also rely on its " ordinary
experience and knowledge" when determining the market value of stolen property from the
evidence presented. Melrose, 2 Wash. App. at 832.
Here, Hembroff testified about the value of items stolen from his truck, stating that his
new umpire jacket was valued at $ 100, two text books were $ 80 to $ 100 each, and that he had
purchased his laptop computer for $900 less than one year before it was stolen. Stargel contends
that Hembroffs testimony was insufficient to support the value element of second degree theft
because the testimony did not establish the market value of the laptop computer and textbooks'
at the time he stole them. Stargel does not contest that the State presented sufficient evidence
from find that the market value of the umpire jacket was $ 100.
which the jury could
1 As the following exchange shows, it is unclear whether Hembroff had testified as to the
textbooks' purchase price or to their market value:
State]: What was the value of the umpire jacket?
Hembroff] : $ 100.
State]: How about the textbooks? Do you know about how much it was?
Hembroff]: Probably, give or take, $ 80 to $ 100 a piece.
State] : How many were there?
Hembroff]: I believe two.
State]: So somewhere between $ 160 to $200 worth of books?
Hembroff] : Correct.
RP ( Nov. 6, 2013) at 25 -26. Although unclear, for the sake of argument we treat Hembroff' s
testimony as establishing the textbooks' purchase price.
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No. 45721 -1 - II
Accordingly, to uphold his second degree theft conviction, the State must have presented
sufficient evidence that the combined market value of the stolen text books and laptop computer
at the time of the theft exceeded $ 650.
Citing to Ehrhardt, 167 Wash. App. 934, Stargel asserts that we must reverse his conviction
for lack of sufficient evidence, because the State failed to present evidence of "what the
condition or depreciation of these items might be" and, thus, "[ t]here was no evidence from
infer their Br. Appellant at 15. In Ehrhardt, a nonowner
which the jury could current value." of
witness testified about the purchase price of stolen professional construction tools that had been
used in professional construction projects for about three years prior to the theft. 167 Wash. App.
at 938, 946 -47. In reversing the appellant' s second degree theft conviction for lack of sufficient
evidence in support of the value element, we reasoned that the State failed to present any
evidence from which the jury could infer " whether the tools even worked, let alone what effect
their condition had on their market value." Ehrhardt, 167 Wash. App. at 947.
Here, in contrast with Ehrhardt, Hembroff testified that at the time of the theft, he was a
college student and was then using the textbooks and his laptop computer in preparation for his
upcoming final exams. He also testified that he purchased his laptop computer for $900 less than
a year before it was stolen, and that he stored his class notes on that computer. Based on this
testimony, the jury could reasonably infer that the textbooks were less than a semester old and
were still being utilized in a college course at the time of the theft. Hembroff s testimony also
permitted the jury to reasonably infer that the laptop computerwas in working condition at the
time of the theft. Unlike in Ehrhardt, here the State presented sufficient evidence of the
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No. 45721 - 1 - II
condition of the stolen items from which the jury could rely on its " ordinary experience and
knowledge" to find that the combined value of the textbooks and laptop computer exceeded $ 650
in value when accounting for depreciation. Melrose, 2 Wash. App. at 832. Accordingly, we affirm
Stargel' s convictions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
Worswick, J.
CF.
J •
L Jrgr A.C. J.
1, c.
Sutton,
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